Criminal Procedure Ordinance-fury-Right of Crown to order jurors to stand by-Report of Trial fudge-Verdict of fury     set aside by Court of Appeal and a different verdict substituted.

Though the Criminal Procedure Ordinance makes no reference to the right of the Crown to order a juror to stand by, such right exists by virtue of the Common Law.

The appellants were convicted of murder. The trial Judge reported that. he feared that there had been a miscarriage of justice.

The Court of Appeal took the trial Judge's report into consideration and certain inconsistencies in the evidence for the Crown, and being of opinion that there must have been great provocation to make appellants act as they did, substituted a verdict of manslaughter.

 Henley Coussey, E. C. Quist and O. Awere for the Appellants.

The Acting Solicitor-General L. E. V. M'Carthy for the Crown.

The judgment of the Court, which consisted of Hall, Acting

C.J. the Gold Coast Colony, MicheJin and Sawrey-Cookson, J.J., was delivered by Hall, Acting c.J. as follows :-

The appellants in this case were convicted on two counts of the murder of Yerima Kotokoli and Mama Kotokoli at Asamangkese on the night of 5th May, 1931. Although the trial should, according to law, have taken place in the Eastern Province, yet, on the application of counsel for the accused and with the concurrence of Counsel representing the Crown, I, as Acting Chief Justice, transferred the case to a special Divisional Court at Sekondi, it being alleged that it was unlikely that a fair trial could be obtained at Accra on the ground of local prejudice.

At the opening of the case at Sekondi the Acting Solicitor­General, who represented the Crown, caused a large number of jurymen to " stand by," and it was contended by Counsel for the appellants before this Court that in view of the provisions of the Criminal Procedure Ordinance no such right existed in the Crown.

In our view it is clear that the Crown still retains this right. Under section 14 of the Supreme Court Ordinance the Common Law of England is in force within the jurisdiction ()f this Court. It is true that as regards practice and procedure the Supreme Court is to follow the Criminal Procedure Ordinance so far as that Ordinance indicates what the practice and procedure to be followed is, and this brings me to sections 124 and 125 of that Ordinance. Section 124 forbids any challenge to the array and allows three peremptory challenges to an accused person, whilst section 125 deals with challenges for cause.

Turning to the 28th Edition of Archbold's Criminal Pleading Evidence and Practice it is found that at Common Law the Crown might challenge peremptorily any number of jurors.

This power was taken away by 33 Edward I, Cap. 4, which was subsequently repealed by 6 Geo. IV, Cap. 50, but the later statute  re-asserted that the Crown could only challenge for cause ...

It is clear, however, from the cases of R. v. Parry, 7 C. and P. page 836, and R. v. Geach, 9 C. and P. page 499, that the old right of "standing by" still remained with the Crown despite the afore-mentioned Statutes.

In effect, therefore, the relevant sections in our Procedure Ordinance contain similar provisions to the English Law, and since our Ordinances are as silent as the English Statutes in regard to the right of the Crown to " stand by" it would seem that the old Common Law right of the Crown in that respect survives here as in England.

I might perhaps add that the right to " stand by " has been always exercised by the Crown in this Colony within the memory of the members of this Court, which extends over a number of years.

We found it necessary under rule 43 of the West African Court of Appeal Rules to request the learned Judge who presided at the trial in the Court below to furnish us with a general report of the trial. We did not consider it expedient to disclose to Counsel the full contents of that report, but we saw fit, when the Court sat yesterday for the third day's argument, to inform the Acting Solicitor-General that the trial Judge in his report had, to all intents and purposes, intimated that he apprehended a miscarriage of justice owing to the attitude of the jury when delivering their verdict.

This of course was a most serious suggestion and we referred Counsel to R. v. Scranton, 15 Cr. App. R. at page 110, and R. v. Frank Rive, 20 Cr. App. R. at page 23, in which cases the weight to be attached to the opinions of the trial Judge by the members of the Court of Appeal was careful1y considered. I do not feel it necessary to set out those judgments at length as they were fully discussed during the argument before us.

Together with the expression of opinion by the trial Judge, to which I have referred above, must, I think, be considered a motion which was filed in the Court below by Counsel representing the Asamangkese Stool and the Kotokoli Chief, in effect asking for leave to take an independent part in the prosecution. This motion was heard by the court below whilst the trial was in progress.

It is true that the jury were sent out of the Court whilst the motion was being argued, but it must be perfectly obvious to anyone who knows local circumstances that the purpose of the motion must have become known to the jury, who in this country are not" locked up " during the continuance of a murder trial as in England. It is abundantly clear that the motion should never have been filed, and it is very possible that the suggestions in the affidavit in support of that motion may have created a false atmosphere in the case so far as the jury were concerned.

 It is significant as Counsel for the appellants pointed out, that, the day after this motion was dealt with, the jury should have applied for an inspection of the locus-in-quo, one of the very things asked for in the afore-mentioned affidavit. (Vide paragraph 7 thereof)